WALLACE REIMERv.ZONING BOARD OF ADJUSTMENT OF THE CITY OF PITTSBURGH. CITY OF PITTSBURGH, APPELLANT

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Wallace Reimer v. The Zoning Board of Adjustment of the City of Pittsburgh, No. SA 512 of 1981.

COUNSEL

D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellant.

Joseph W. Huber, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Williams, Jr., concurs in the result only.

Author: Crumlish

[ 70 Pa. Commw. Page 480]

The Allegheny County Common Pleas Court reversed a Pittsburgh Zoning Board of Adjustment denial of an occupancy permit to Wallace Reimer. The City of Pittsburgh appeals. We vacate and remand.

Reimer, the owner of a three-unit multiple family dwelling located within an R-2 (two-family residential) zoning district, was cited in 1981 for failure to have an occupancy permit. He then applied for a three-family use permit which was denied. On appeal, the common pleas court, concluding that Reimer's right to a three-family use had vested, reversed without taking additional evidence. This appeal followed.

[ 70 Pa. Commw. Page 481]

Where the lower court does not take additional evidence, our scope of review is limited to a determination of whether the Board abused its discretion or committed an error of law. Kernick v. Zoning Hearing Board of the Municipality of Penn Hills, 56 Pa. Commonwealth Ct. 512, 425 A.2d 1176 (1981). Here, we are unable to exercise our review function due to the Board's failure to make findings of fact as to the vested rights issue. See Board of Commissioners Page 481} of Ross Township, 63 Pa. Commonwealth Ct. 400, 437 A.2d 1338 (1981). As this Court stated in Hess v. Upper Oxford Township, 17 Pa. Commonwealth Ct. 399, 332 A.2d 836 (1975),

[t]his Court will not rummage through the record, speculating upon the credibility and weight of the evidence before a finder of fact. Nor will we, with one hat on, make our own findings, and then don our appellate hat to determine whether our decision can be sustained.

Id. at 403, 332 A.2d at 838-39.

We therefore remand this case to the lower court with instructions to proceed further in a manner not ...

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